Monday afternoon, Rep. Chris Hurst (Democrat from Enumclaw, former “narcotics” detective) offered an amendment that I suspect we’ll look back upon as the nail in the coffin of SB 5073. Only one representative spoke in opposition to the amendment (thanks, Roger Goodman). Hurst’s amendment was adopted, removing protections against police terrorism the bill would have provided for patients who operate in accordance with our state’s Medical Use of Marijuana Act, and completely disqualifying national guard members, parolees, and people under other forms of Department of Corrections supervision who qualify under current law.

Cannabis Defense Coalition’s primary interest in this legislation is to ensure that it stops police from terrorizing qualifying medical marijuana patients. The 1998 law, RCW 69.51A provides only an affirmative defense (i.e., if a qualifying patient is prosecuted for marijuana crime, he or she can go to court and say, “I did it, but I have an excuse.”), and police in many areas of the state still arrest people who are operating within the law, often ransacking their homes and seizing their property in the process. We believe that this “arrest protection” we seek should not be contingent upon patients putting themselves in a still-to-be-developed government database (a “patient registry”).

Chris Hurst — and surprisingly, even Roger Goodman (former director of the King County Bar Association’s Drug Policy Project and of Voluntary Committee of Lawyers) — expressed the desire for the legislature to manufacture incentive for patients to voluntarily notify the state of their and their doctors’ medical treatment decisions. I mostly disagree. I think any incentive to register should come from the lure of things we can do because someone registers, not as a result of his or her desire for something we offer those patients who register but withhold from those who don’t simply to encourage registration. For instance, without registration, we can’t give people a spiffy state-issued medical marijuana registration card, and we can’t force police to determine if a property of interest is the home of an authorized patient before they visit (earlier versions of the bill would have required this). But if we can make police stop terrorizing people who prove their qualification by way of presenting documentation of their registration, we should be able to make them stop terrorizing people who prove their qualification by way of presenting documentation of their doctors’ recommendations. The latter is the only related documentation the law requires of patients now, and it’s all that would be required of them if this bill is enacted as law.

Hurst said that he wondered why, if we were to protect authorized patients who choose not to register, we’d need a medical cannabis registry at all. Unfortunately, instead of proposing the logical fix — removal of the seemingly-unnecessary patient registry provision — he proposed removal of protections for those patients who do not choose to register. Apparently, a majority of our elected representatives either agreed with him or were bamboozled by his misleading testimony. The amendment passed by electronic roll call vote after the speaker of the house waited long after the “speaker is about to disable the voting machine” warning for votes to continue bouncing around.

The next step for the bill is concurrence, during which a small group of Senators and Representatives will attempt to reconcile differences between the House version of the bill (bad) and the Senate version (worse).

Activists across the state who have largely been supportive of the bill, dutifully following the carrot of protection from police terrorism which forever dangles just out of reach, are poised to storm the Capitol, stop the presses, and if necessary, call for Governor Gregoire to veto the bill unless some magic happens during the next few days of the legislative session.

Recent news reports suggest that all is rosy, rarely mentioning any of the multiple negative aspects of this bill supporters have been convinced to swallow in exchange for the promise of protection for patients from being arrested and having their homes ransacked as a result of their lawful activity (see this, this, this, this, and this). This week’s NORML newsletter mentions none of the controversy, directing interested readers to Washington NORML’s Web site (where there is a single-paragraph overview of the two bills, including outdated information about SB 5073) and to ACLU of Washington, who are already heralding this as a victory for medical cannabis patients.

Governor Gregoire stated Monday prior to the House vote that she “has concerns about” the bill, but her statement that the bill has “changed dramatically from where it was in the senate” suggests that she is unaware of the bill’s progression from quite good when introduced by Senator Kohl-Welles to quite bad when passed by the Senate.

effects of the amendment

Removes the protections from searches for qualifying patients registered with the Department of Health (DOH). Removes the protections from being taken into custody or booked into jail for qualifying patients with valid documentation, but who are not registered with DOH (retains the affirmative defense).

Requires that a qualifying patient in the DOH registry not have converted cannabis for medical use to personal, nonmedical use or benefit in order to receive arrest and prosecution protections.

Requires that a nonresident not have converted cannabis to personal, nonmedical use or benefit in order to assert an affirmative defense.

Exempts certain persons who are under the supervision of a corrections agency or department, including a local government or jail, from relying upon arrest and prosecution protections and affirmative defenses related to the medical use of cannabis in a proceeding regarding supervision revocation or violation.

floor debate transcript

Chris Hurst

Thank you, Mr. Speaker. Well, the intent of this legislation has to do with medical marijuana, getting people on a registry, having some clear lines, and my amendment to the bill, I think, will improve the bill by making those lines even more clear.

If a person is on the registry, then they have not only the affirmative defense when they go to court but also protection from arrest. What’s the point of having a registry, Mr. Speaker, if we don’t encourage people to use it? It serves no purpose. And if we give protections to people from arrest who are not on the registry, why have it at all? It doesn’t make a whole lot of sense, here. So what I’m saying is, “Let’s go ahead and perfect this bill a little bit more, make it better.” We’ll say that all people can have this affirmative defense. So we’re not taking something away with this amendment. Whether you’re on the registry or whether you’re not on the registry, you have the affirmative defense. That’s a given. But if you really want to use medical marijuana, how hard is it to be on the registry?

This will make it safer for people that use medical marijuana. This will make it safer for law enforcement. This will make it safer for the public at large. It will cause fewer conflicts.

Now, I realize that some of the advocates may disagree, and say, “Well, this is inconvenient. I don’t know whether I really want to be on the registry. There are some privacy things, here.” But I would say that at some point in time, everybody’s gonna have to be on the registry to be able to have that arrest protection. And once again: Not being on there does not take away– We’re not taking away your affirmative defense in court, but at some point in time we will get to the place as logical sound public policy that you need to be there so law enforcement don’t have to have this gray area. They can look on the registry, and you’re either there or you’re not. How hard is that to do?

Or, in the alternative, have police officers trying to decide about the integrity of the documention that they’re being provided. Is it authentic? Is it not? Uh, in the case of drivers’ licenses. Let’s do a comparison here. If I simply have a driver’s license and it looks like it’s not quite right police are going to investigate. They’re gonna check to make sure that’s a valid Washington driver’s license. And if it’s not, I’m not gonna get the benefits of having the privilege to drive a car.

Same thing with marijuana. We’re creating this registry, but we also have the cards — not issued by the state — or, in some cases yes, but a person’s gonna say, “Here’s my medical marijuana card,” What if it’s not valid? So, I would say let’s do the same type of thing. Let’s trust but verify, Mr. Speaker.

Uh, lets have a logical way in which we can deconflict, make it safer for patients, safer for law enforcement. I would, uh, ask you to pass this amendment, Mr. Speaker.

Joe Schmick

Remarks from [Joe Schmick], 9th District, Colfax:

Thank you, Mr. Speaker. Well, we– we agree that this amendment. We do think that it helps clarify, and, uh, we would support this amendment.

Roger Goodman

Thank you, Mr. Speaker. I appreciate, uh, the gentleman from the 31st starting the conversation about, uh, the registry, and it’s important to provide incentive for people to get on this patient registry. But unfortunately, the amendment as written really moves us backwards even before this bill was introduced. It eliminates protections for those who aren’t on the registry but do have the authorization from a doctor. Uh, not only from arrest but also from being put in jail and so forth. It’s a very traumatic experience for these patients.

So I would recommend a no vote on this amendment, because it really does move us backward, and removes important protections for medical cannabis patients.